There has been perhaps no one in the DoD legal community who has made a greater contribution to the advancement of the law of war than Col.(ret.) W. Hays Parks, USMC—and nowhere was his contribution greater than within the Special Operations community. His work on special operations forces wear of non-standard uniforms proved critical to ongoing operations when written and will endure as a model of analysis for future special operations.
Parks and the Special Operations Community
Gary Solis has already written on Hays’s long and illustrious career and his contributions to the law of war. The former Staff Judge Advocate to the Commandant of the Marine Corps, Major General Dan Lecce, has also written a tribute to Hays and his contributions. I personally benefitted from both his scholarship and advice while serving as a Navy JAG supporting Special Operations Forces. Not only throughout his career, but also well into his retirement, Hays continued to serve as a mentor—and sanity check—for attorneys across the Special Operations community. He was a regular at the annual U.S. Special Operations Command (USSOCOM) Legal Conference in Tampa, receiving the USSOCOM Outstanding Civilian Service Medal in 2001 and the Major General William F. Garrison Award in 2006 for a career of service to Special Operations Forces. It was not uncommon for him to show up at a promotion or retirement ceremony for a JAG who had relied upon his mentorship. He is truly missed.
A discussion at the 2002 USSOCOM Legal Conference prompted Hays to write Special Forces’ Wear of Non-Standard Uniforms. The article is truly a classic and an excellent example of law of war scholarship. In our own article, Legal Issues in Special Operations, published in U.S. Military Operations: Law, Policy, and Practice, Col. Matt Grant (USAF) and I relied heavily on Hays’s work. Perhaps most importantly, his opinion on this topic is also reflected in the Department of Defense Law of War Manual.
Non-Standard Uniforms
The wear of civilian clothes and non-standard uniforms by soldiers was not a new development in 2002. However, images of U.S. Green Berets on horseback wearing pakols and various combinations of uniforms and shalwar kameez in late 2001 brought the issue back into public view. Some in the media and NGOs were quick to claim this practice violated the law of war and could constitute a war crime. The same debate took place among U.S. judge advocates, including within the Special Operations Forces (SOF). Hays realized that not only did many of those expressing opinions not fully understand the law on this issue, they also did not know the facts relevant to the issue. As a result, Hays wrote Special Forces’ Wear of Non-Standard Uniforms.
Know the Facts
Attorneys new to the practice of operational law are often overwhelmed by the pace of operations as well as the sheer amount of information that must be considered when providing advice. Hays, based on his extensive experience, knew that an opinion based on incomplete facts was a sure way to get things wrong. In the opening paragraphs of Non-Standard Uniforms, he relates how the practice’s many detractors lacked a factual basis for their opinions. He then provided a detailed description of the units and personnel involved in the issue, the activities in which they were engaged, and their status. As in so many of his articles, Hays provides a lesson in history as well as the law. He lays out the reasons behind the use of non-standard uniforms and civilian clothing as well as the historical basis for the wear of non-standard uniforms. His survey includes Civil Affairs operations in Vietnam, in Iraq and Afghanistan, operations conducted by the Office of Special Services in the Second World War, and British operations, including those involving T.E. Lawrence, in the First World War.
It is clear from not only Non-Standard Uniforms, but also many of his other articles and opinions, that Hays did not accept ignorance of the facts as an excuse for bad legal advice. Yet judge advocates and others advising on operations often find themselves in a staff overmatch. The legal advisor is often a staff of one or—if lucky—two attorneys. It is impossible to attend every planning session, observe every operation, and make every meeting. However, the legal advisor must know and understand the mission and the commander’s intent to advise soundly. To do this, military legal advisors must integrate into staff organizations and develop relationships, so planners and operators proactively involve them in planning. Consistent with Hays’s outlook, I advised new operational lawyers that if you are waiting in your office for the questions to come to you, you’ve failed.
Finding Your Point on the Spectrum of Conflict—and Competition
Hays also noted that legal questions require a determination of context. In the case of Afghanistan in 2002, Hays recognized that the type of conflict, and therefore the applicable law, wasn’t always clear. Despite resembling counter-insurgency or counter-terrorism, the United States largely applied the law applicable to international armed conflicts. Of course, there were exceptions, especially the decision to not recognize captured Taliban and Al Qaeda fighters as prisoners of war. Overall, Hays resolved to apply both treaty and customary international law applicable to international armed conflicts to operations in Afghanistan though the facts may not have compelled this conclusion, a point worth bearing in mind when applying Hays’s analysis to future operations.
Hays highlighted that many critics of the non-standard uniform policy based their analysis, and opinion, on the Third Geneva Convention of 1949 (GPW). They claimed not only that SOF captured in civilian clothing or non-standard uniforms would not be entitled to prisoner of war status, they also alleged the practice amounted to a violation of the law of war. Hays makes it clear that not only is this opinion wrong, it is also based on the wrong body of international law. He insisted, “The GPW and its predecessors contain no language requiring military personnel to wear a uniform, nor prohibiting them from fighting in something other than a full, standard uniform. Nor does it make it a war crime not to wear a uniform.”
He conceded that the status of captured SOF personnel is a matter commanders must consider and that, while military personnel in non-standard uniforms are entitled to prisoner of war status, personnel captured in civilian clothing might be treated as spies and denied such status. Hays is clear, however, that non-standard uniforms are lawful unless perfidious. That is, they are lawful unless they result in “killing or wounding the enemy through treachery” and that feigning civilian status, including wearing civilian clothing, would only constitute treachery if it was the “proximate cause of the killing, injury, or capture of the enemy.”
Of course, Hays again emphasizes that “the devil is in the details” and that the line between perfidy and lawful wear of civilian clothes or non-standard uniforms is far from clear. There are legitimate, operational reasons for SOF to operate in civilian attire or non-standard uniforms. The balance between perfidy and lawfulness is determined by the law of war principle of distinction.
Not Illegal But . . .
Perhaps one of the greatest contributions of Non-Standard Uniforms is the discussion of state practice with regards to the wearing of non-standard uniforms, which is accompanied by an appendix listing specific examples and how personnel were treated. This is particularly helpful for understanding how this practice has developed across the spectrum of conflict and history. Between the footnotes, the appendix, and the text itself, Hays provides a military history of SOF and non-standard uniforms. The breadth of operations covered and depth of analysis shows Hays’s unique talents—he was both a scholar and a practitioner with an incredible amount of experience.
In his discussion of State practice in this area, Hays makes clear that while SOF wear of civilian clothing or non-standard uniforms is only unlawful if it is perfidious, the practice has—and should be—limited by military necessity. He states, “State tolerance of Special Forces’ fighting in civilian clothing is limited to special circ*mstances, such as support for partisans” before going on to describe past instances where enemy forces caught wearing civilian clothing were treated as “prisoners of war and not prosecuted unless their actions involved treachery.”
In addition to wearing civilian clothing or non-standard uniforms in support of partisans, Hays’s review of State practice shows that SOF conducting intelligence activities in an international armed conflict have also often worn civilian clothing. Of course, this activity also likely carries the greatest risk of a captured SOF member being treated as a spy instead of being granted prisoner of war status.
Hays makes plain that the wear of non-standard uniforms will normally not violate the principle of distinction. The law of war does not require SOF personnel to be readily identifiable as U.S. SOF, only that they can be distinguished from non-combatants and civilians. The case of U.S. SOF in Afghanistan, as well as the many examples cited by Hays, show that the wear of non-standard uniforms was intended to allow personnel to blend in with their local partner forces, who were easily distinguishable from the local civilian population by their distinctive emblems. Non-standard uniforms were also used to prevent U.S. SOF personnel from being specifically targeted for capture or killing. Hays showcases how Taliban and Al Qaeda forces had put out a bounty for the capture of U.S. personnel. Thus, the removal of U.S. name tags, rank, service affiliation, and even the wear of local force uniforms or emblems did not in those circ*mstances violate the law of war.
Non-Standard Uniforms in Great Power Competition
With the withdrawal of all U.S. forces from Afghanistan, some may think that the issues examined in Non-Standard Uniforms are no longer relevant. Nothing could be further from the truth. U.S. SOF are still conducting operations alongside partner forces in several countries in Africa as well as in Iraq and Syria. It is also very likely that U.S. SOF will be called on to conduct counter-terrorism operations—both unilateral and partnered—in Afghanistan as well as in other countries both within and outside of the Central Command AOR. Additionally, the shift in focus from counter-insurgency and counter-terrorism to great power competition does not mean that SOF will no longer need to wear non-standard uniforms while performing their missions. If anything, military operations at, or just below, the use of force threshold, will mean further complexity for attorneys advising planners, operators, and commanders of these “gray zone” operations.
Much has already been written about the U.S. strategic shift from counter-terrorism and counter-insurgency to great power competition. According to the 2018 U.S. National Defense Strategy, this “competition” will incorporate a wide-range of activities, mostly carried out below the threshold of armed conflict. Referred to as unconventional warfare, irregular warfare, political warfare, hybrid conflict, and “gray zone” activities, it will involve the use of all instruments of national power—economic, diplomatic, and informational, as well as intelligence and military means.
The goal of this competition is to protect and advance national security interests without crossing the threshold into an armed conflict. Of course, this may include the use of limited military force, but through the use of surrogates to obfuscate state sponsorship—and at a level intended to avoid armed retaliation. Likely military activities will include security force assistance, advise and assist missions, intelligence activities, and preparation of the environment. Additionally, U.S. SOF will be preparing for future missions by developing surrogate networks and establishing safe-houses and caches. Legal advisors working in this space must know where on the spectrum of competition the operations are taking place so they can apply the relevant legal paradigm. If outside of an armed conflict, they must know the relevant international agreements, domestic laws, and host nation laws.
Regardless of the operation, nature of the conflict, or status of forces, legal advisors would be well advised to follow the example of Hays Parks—you must understand both the law and the facts to advise your client.
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Todd Huntley is the Director of the National Security Law Program and a Lecturer in Law at Georgetown University Law Center.
